Doe possessed: ‘They have information about every aspect of our lives’

MADISON, Wis. – Almost five months after the Government Accountability Board quietly ended its role in a politically charged investigation into dozens of Wisconsin conservative groups, the agency has yet to return property seized from people caught up in the probe.

“I would think that because it’s not an ongoing investigation, then it seems to me they should get their stuff back,” said constitutional law expert Rick Esenberg.

Investigators seized paper files, computers and other electronic devices, including the electronic equipment of targets’ family members, among other property, in raids in October 2013.

They aren’t likely to see their things again anytime soon.

‘DISPOSSESSED’: Months after the state government Accountability Board shut down its John Doe investigation, conservative targets of the probe have yet to see the return of their seized property.

That may indicate that the GAB is still working with prosecutors, led by Milwaukee District Attorney John Chisholm, the Democrat who has used his position to investigate Wisconsin conservatives for much of the past four years.

Conservative targets of the probe in a lawsuit against the GAB contend agency staff continued work on the investigation even after the judges presiding over the accountability board voted to shut it down in August.

“The answer is that the GAB probably does not have seized property in its custody, technically,” said Madison defense attorney Dean Strang, who has been involved in the litigation challenging the probe for more than a year.

Because warrants and subpoenas were issued by the first John Doe presiding judge, Barbara A. Kluka, who suddenly and without explanation recused herself in October 2013, “the property probably is in the custody of the special prosecutor or, more likely as a specific matter, some other sworn agent of the John Doe,” Strang said.

The “special prosecutor” is former federal prosecutor Francis Schmitz, who, according to court documents, worked on the John Doe probe as a special investigator for the GAB before the agency recommended to Kluka that Schmitz serve as the coordinating prosecutor.

Plaintiffs in the lawsuit against the board assert the GAB has been the banker for a partisan witch-hunt and political opposition research campaign under the guise of an investigation into potential campaign finance violations.

Schmitz could not be reached for comment. A GAB receptionist said Schmitz was not at the office Monday afternoon. Schmitz repeatedly has declined comment in the past.

“So those people or organizations whose property was seized remain dispossessed, presumably at least until after the Supreme Court rules — and maybe much longer, depending on how the Supreme Court rules,” Strang said.

Court documents show prosecutors and the state Government Accountability Board “obtained and examined hundreds of thousands of documents in connection with the John Doe proceeding.” And “more than 30 subpoenas have been issued throughout Wisconsin and across the country to conservative-leaning groups, internet service providers, and finance institutions,” court records state.

In other cases, prosecutors copied entire hard drives of computers, then returned the computers, sources have told Wisconsin Reporter.

“A year after Judge Peterson’s ruling and five months after the GAB shut down its investigation, prosecutors are still in possession of personal devices and files and electronic copies of computers, phones and hard drives from targets and our family members,” one subject of the probe told Wisconsin Reporter on condition of anonymity. “In other words, they have information about every aspect of our lives.”

Peterson’s order to stay the return of property prohibits prosecutors from reviewing or using the information they collected by warrant or subpoena. The source, however, said that is little comfort “given the GAB staff and prosecutors’ propensity for breaking the law and defying court orders throughout this investigation.”

John Doe probes are similar to grand jury investigations, without a jury. One judge is vested with extraordinary powers to grant search warrants and subpoenas and compel witnesses to testify.

Despite the strict secrecy orders attached to the John Doe procedure — gag orders that come with jail time for targets who speak publicly about the probe — the GAB and prosecutors have used information from confiscated material to defend themselves in court.

“Subsequent prosecution behavior in court exposed their real objectives, as they filed affidavits written as political propaganda pieces, based on stringing together sections of emails chosen from hundreds of thousands,” said long-time political activist Eric O’Keefe.

O’Keefe and his Wisconsin Club for Growth, targets of the probe, have sued prosecutors and the GAB on allegations of abusing their power and violating the targets’ constitutional rights.

“They (defendants) then argued that those affidavits should be made public, and worked to see that the most inflammatory pages were publicized before the election. Meanwhile, they illegally concealed from the public until after the (November 2014 gubernatorial) election the fact that GAB had discontinued its investigation,” O’Keefe added.

Prosecutors and the GAB opened their investigations by speculating that the conservatives coordinated their political activities with Gov. Scott Walker during the state’s partisan 2012 recall season. Conservatives have argued that state limits on interest advocacy political activities — or those that do not directly support or oppose a candidate — are unconstitutional.

The panel of judges that oversees the Government Accountability Board ended the agency’s investigation. And Peterson and U.S. District Court Judge Rudolph Randa found prosecutor’s interpretation of law untenable. Randa called it “simply wrong.”

M.D. Kittle is bureau chief of Wisconsin Watchdog and First Amendment Reporter for Watchdog.org. Kittle is a 25-year veteran of print, broadcast and online media. He is the recipient of several awards for journalism excellence from The Associated Press, Inland Press, the Wisconsin Broadcasters Association, and others. Kittle's extensive series on Wisconsin's unconstitutional John Doe investigations was the basis of a 2014 documentary on Glenn Beck's TheBlaze. His work has been featured in Town Hall, Fox News, NewsMax, and other national publications, and his reporting has been cited by news outlets nationwide. Kittle is a fill-in talk show host on the Jay Weber Show and the Vicki McKenna Show in Milwaukee and Madison. Contact Kittle at [email protected]